RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 November 2005
      DOCKET NUMBER:  AR20050003949


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Richard P. Nelson             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Della R. Trimble              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests award of the Purple Heart.

2.  The applicant states that he was injured in 1945 while transporting
German prisoners of war.  He alleges that the prisoners were in the back of
a two and a half ton truck taking them to a prisoner of war compound near
Passau, Germany. Enemy gunfire was encountered and the German prisoners
“stormed the back of the truck where another Soldier and I (applicant) were
standing guard.”  The prisoners pushed the applicant off the back of the
truck, almost crushing him while they escaped.  Small arms fire broke out
and the applicant was wounded in the right leg and knee.  He was
transported to a U.S. field hospital for treatment and “recommended for the
Purple Heart.”

3.  The applicant provides numerous documents in support of his
application, to include: a Combat Related Specialty Compensation (CRSC)
rating; a Medical History Letter; a DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) dated 31July 1965; a WD AGO Form 53-
55 (Enlisted Record and Report of Separation-Honorable Discharge) dated 6
May 1946; and over sixty pages of medical documents, Department of Veterans
Affairs correspondence, a biography, and numerous newspaper articles.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 31 July 1965.  The application submitted in this case is dated
30 March 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records are not available to the Board for
review.  The applicant submitted his request as a rebuttal to his CRSC
determination.  However, there were sufficient documents submitted with the
application for the Board to conduct a fair and impartial review of this
case.

4.  The available records show the applicant was inducted on 20 October
1944 and served as a Military Policeman in the European-African-Middle
Eastern Theater of Operations.  He enlisted in the Regular Army on 7 May
1946 and remained on active duty until 31 July 1965 when he was honorably
separated and placed on the retired list the following day.

5.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-
55 dated 6 May 1946, which is authenticated in his own hand, does not show
entitlement to award of the Purple Heart.  Item 34 (Wounds Received in
Action) of the WD AGO Form 53-55 contains the entry, "None."

6.  Hospital admission cards of the Office of The Surgeon General, commonly
referred to as the "SGO Files,” do not show that the applicant was wounded,
or treated for wounds, resulting from hostile action.

7.  In a DA Form 1049 (Personnel Action) dated 24 February 1965, the
applicant requested a physical evaluation for retirement under the
provisions of Army Regulation 635-40 (Physical Evaluation for Retention,
Retirement, or Separation).  In that form, the applicant stated that he
“Fractured his knee when truck stopped and started forward with a jerking
motion, while transporting prisoners of war, near Passau Germany in 1945.
I was treated for cut on left leg, fractured elbow and fractured knee.  My
right knee has a lump below the knee cap and is painful when I crawl or put
pressure on the knee.”

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Purple Heart is awarded to any member of an Armed Force who, while
serving under competent authority in any capacity with one of the U.S.
Armed Services after 5 April 1917, has been wounded or killed as a result
of hostile action.  Substantiating evidence must be provided to verify that
the wound was the result of hostile action, the wound must have required
treatment, and the medical treatment must have been made a matter of
official record.  This regulation also provides that there is no statute of
limitations on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant authenticated his WD AGO Form 53-55, which did not show
award of the Purple Heart or wounds sustained in action.  There are no
medical records that show the applicant was wounded, or treated for wounds,
as a result of hostile action.  There are no orders or certificates that
awarded the applicant the Purple Heart.

2.  On 22 February 2005, the applicant states that he was nearly crushed by
German prisoners of war when they “stormed the back of the truck.”  He also
contends that he was “wounded in the right leg and knee” when small arms
gunfire broke out.  However, in the statement he made, and signed, on
24 February 1965 (exactly 40 years earlier), the applicant states that his
right knee was “fractured” when the truck “stopped and started with a
jerking motion.”  There is nothing in the available records to account for
this disparity

3.  In view of the above, there is insufficient evidence to corroborate the
applicant’s contention that he was wounded as a result of hostile action in
1945.  Therefore, he is not entitled to award of the Purple Heart, or
correction of his records to show this decoration.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1965.  Therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 30 July 1968.  Although the applicant did not file within the
ABCMR's statute of limitations, it is appropriate to waive failure to
timely file in this case based on the fact there is no statute of
limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk____  ___drt___  ___dja___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




            _________Stanley Kelley_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050003949                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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